Reporter Volume 26, No.23 April 6, 1995 Bult in few actual executions. According to Heritage Foundation scholar Ernest van den Haag, it will likely take at least ten years before anyone convicted of a capital crime in New York is put to death. "There are 2,900 people on death row today, but most will die of old age. We execute fewer than 2 percent of death row inmates each year," he explained. Van den Haag spoke in support of the death penalty during a debate March 29 at the UB Law School. Van den Haag's antagonist in the debate was Charles Culhane, a master's degree candidate in UB's American Studies Department. Culhane spent 27 years in prison, including 33 months on death row. A retired law professor from Fordham University and contributing editor of the National Review, Van den Haag argued that the death penalty was justified on both moral and practical grounds. "Why do we punish the guilty and not the innocent? We don't feel that the innocent deserve to be punished. Since murder is the greatest of crimes, therefore it should deserve the greatest of punishments," concluded Van den Haag. Van den Haag also argued that the death penalty is an effective deterrent of crime. Citing a 1973 study by UB Economics Professor Isaac Ehrlich, Van den Haag claimed that each execution would have the effect of deterring between seven and nine murders. "On the whole, it is well established that the death penalty deters crime. But that is not important," he said. "The important question is: does it deter more than any reasonable alternatives such as life imprisonment without parole?" Van den Haag said it does, and he believes that too much is made of the of the potential for innocent people to be executed. "If, as I believe, each execution deters ten murders, then the issue is whether we spare a guilty murderer, and thus sacrifice ten innocent lives. My opponent values the life of a convicted murderer more than the lives of those ten innocent victims who could be spared by that execution." Asked by a student in the audience about the potential risk of sentencing innocent people to death, Van den Haag responded that "Ambulances sometimes run down innocent people, but we don't give them up." Since the turn of the century, Van den Haag said, about 7,000 people have been executed, but only 23 of them are known to have been innocent. Culhane responded that those 23 were only those killed so far among more than 350 documented cases of innocent persons on death row. He questioned the validity of Ehrlich's study, which has been discounted by noted economists over the years, and argued that there was no moral justification for the death penalty. "In Texas, for example, people with IQs of 70 go to the gas chamber," said Culhane. "That's simply a crime against common sense." The death penalty, he added, "erodes the moral and legal foundations of the country." Culhane is a prizewinning prison poet and playwright. His conviction in connection with the death of a Westchester County sheriff's deputy in 1968, was overturned once by the Court of Appeals, only to see him convicted again. His co-defendant was granted clemency by Gov. Mario Cuomo in 1985. Culhane served 25 years of a 25-year-to-life sentence and was paroled in 1992. Most troubling about the death penalty, said Culhane, is its disproportionate application to minorities. "Discrimination in the death penalty is a reflection of discrimination in the criminal justice system," said Culhane; "85 percent of the cells on death row are occupied by blacks." Culhane quoted Supreme Court Justice Harry Blackmun, who wrote shortly before retiring from the bench that "I have struggled to develop procedural rules to make it (imposition of the death penalty) fair. I must conclude that the death penalty experiment in this country has failed. No combination of rules or procedures can ever save the death penalty from its constitutional uncertainties." Ironically, when asked what difference the death penalty would make in New York ten years from now, both Culhane and Van den Haag agreed: probably very little. "It won't make one iota of difference," said Culhane, "but it will help bring this state down morally and financially." "I don't think it will make much difference, either," agreed Van den Haag."It will take ten years to execute anyone, and we will only execute a very few." Erie County District Attorney Kevin Dillon, who teaches criminal procedure at the UB Law School, said that prohibitive costs will make many prosecutors shy away from seeking the death penalty in capital cases. "It is to be seen whether New York's experience with the death penalty will be similar to that of other states: between 1973 and 1993, 4,900 people were sentenced to die in the United States, but only 226 have actually been put to death. "In New Jersey, the first 28 convictions under their new death penalty were overturned. In Pennsylvania, 175 persons have been sentenced to die, but none executed," said Dillon. Like Manhattan District Attorney Robert Morgenthau, Dillon says he will use his "prosecutorial discretion very wisely." The Bronx district attorney has stated categorically he will not seek the death penalty in any cases. Estimates of the cost of litigation needed to see a death penalty case through range from one to five million dollars. Dillon also has serious doubts about the deterrent effect of the death penalty. "If you look at the ten states with the highest rates of crime per 100,000 population, all ten have the death penalty," he said. "but, only six of lowest ten states have the death penalty." A recent Time magazine article, Dillon pointed out, showed that California, Texas and Florida, states that execute prisoners most frequently, all have crime rates far in excess of New York's. Professor Ehrlich, the Melvin H. Baker Chair of American Enterprise, authored a groundbreaking study of the economics of the death penalty in 1973. His study was cited by U.S. Solicitor General Robert Bork, who argued for reinstatement of the death penalty before the U.S. Supreme Court in 1976. Still confident of his earlier findings that "the conditional probability of execution does deter murder," he explained in an interview in Economic Times, that this, alone, would not necessarily be reason enough to implement a death penalty. "What exerts a deterrent effect is the probability that the death penalty will actually be applied," he said. "Even if capital punishment is a more effective deterrent than imprisonment, this does not automatically justify its selection if an alternative is considered less costly from a social point of view." Ehrlich says his research indicated that an increased likelihood that murderers will be caught and convicted would have a greater deterrent effect on murder than capital punishment.